Tony Chibueze Okolonwamu & Anor V. Mrs. Theresa Nkem Okolonwamu & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
The Appellants, who claimed to be sons of Tony Nokwai Okolonwamu (deceased), challenged the validity of his Will, which favoured the first to seventh Respondents, at the Asaba High Court of Delta State.
They alleged in their Amended Statement of Claim that their late father did not make the Will dated 9/9/1999, and claimed as follows:
1) A Declaration that the document dated 9/9/99 purporting and or pretencing (sic) to be the Will of Tony Nokwai Okolonwamu (deceased), who died in January, 2003, at New York, U.S.A is null and void for not being the act of the deceased as well as for non-compliance with the relevant statutory requirements relating to Wills.
2) A Declaration that in accordance with the Asaba Customary Law of succession, the 1st Plaintiff, as the eldest son of the deceased, succeeds to the house/property lying and situate at No. 14 Uda Street and known as (Mrs. Udunma Obi Okolo’s House) in Umuda Umuaji Quarters, Asaba.
3) A Declaration that the Plaintiffs are entitled to a grant of Letters of Administration of the Estate of Tony Nokwai Okolonwamu (deceased).
4) An order of perpetual injunction restraining the Defendants from executing the purporting Will of Tony Nokwai Okolonwamu(deceased) the subject of this Suit or administering, expending any monies or disposing of or dealing in any way with the Deceased’s property or any part thereof and monies in accounts or shares of the deceased.
5) A Declaration that the Power of Attorney made by the (deceased) Tony Nokwai Okolonwamu to any of the Defendants is null and void and that the real and personal estate devised, bequeathed or disposed of thereto are contrary to the Asaba Customary Law.
6) An Order compelling the Defendants to restore to the said Estate any part thereto unlawfully disposed of or dealt with by them.
7) Such further Order or other Orders as may be made and directions as the Court shall think just in the circumstances of the case.
The first to tenth Respondents (hereinafter referred to as the first set of Respondents), insisted that the deceased never married the mother of the Appellants and had only accepted them as his “foster children”; and they Counter-Claimed as follows in their own Amended Pleadings:
(a) A Declaration that the Will dated 9/9/99 is the valid and subsisting Last WILL/Testament of Tony Nokwai Okolonwamu, who died on 26/1/2003.
(b) A Declaration that the Last WILL/Testament of Tony Nokwai Okolonwamu dated 9/9/99 was duly and personally delivered to the Probate Registry of Delta state in accordance with the relevant laws.
(c) A Declaration that the Plaintiffs are NOT entitled to the grant of Letters of Administration in respect of the testate Estate of late Tony Nokwai Okolonwamu.
(d) An Order of perpetual injunction restraining the Plaintiffs, their agents, privies, surrogates or anybody or person acting for them or on their behalf in any manner whatsoever from doing or causing to be done anything inconsistent with the Last WILL/Testament dated 9/9/1999 or any part thereof of late Tony Nokwai Okolonwamu.
At the hearing, the trial Court, relying upon Egharevba V. Oruonghae (2002) FWLR (Pt.121) 1945, allowed the first set of Respondents, who were propounders of the said deceased’s Will, to open their case first.
They called six Witnesses, including first and third Respondents, and the Appellants
called five Witnesses, including the first Appellant. The eleventh Respondent did not call any witness, and in his Judgment delivered on 31/10/2006, the learned trial Judge, Bozimo, CJ, held –
The Plaintiffs are the persons challenging the WILL–They, however, did not place — any evidence to show that the said WILL was not validly made. They also failed to show that the said WILL ran foul of the Native Law and Custom of Asaba people. They also were unable to show that at the time he made the WILL, [deceased] was mentally incapacitated. Consequently, the case of the Plaintiffs fails and it is hereby dismissed in its entirety. I now move to the Counter Claim. Paragraph 7 of the Counter Claim – – contain the reliefs sought by 1st – 10th Respondents. From the totality of the evidence-
– – I hold in terms of the Reliefs sought by the Counter-Claimants that: –
a) The Will dated 9/9/99 is the valid and subsisting WILL/Testament of Tony Nokwai Okolonwamu, who died on 26/1/2003.
b) The Last Will/Testament of Tony Nokwai Okolonwamu dated 9/9/99 was duly lodged in the Probate Registry of the High Court of Justice Delta state.
c) I hold that because the Will is valid, the Plaintiffs are not entitled to the grant of Letters of Administration in respect of the [said Estate].
d) I hereby grant an Order of perpetual injunction restraining the Plaintiffs, their agents, privies, surrogates or anybody or person acting for them or on their behalf in any manner whatsoever from doing or causing to be done anything inconsistent with the Last WILL/Testament dated 9/9/1999 or any part thereof of late Tony Nokwai Okolonwamu.The Appellants appealed to Court of Appeal with a Notice of Appeal containing eight Grounds of Appeal. They formulated the following Issues for Determination, adopted by the Respondents and that Court:
(1) Whether the 1st-10th Respondents, who are the propounders of the Will succeeded in proving the validity of the Will and that the deceased Tony Nokwai Okolonwamu at the time of making the purported Will had testamentary capacity.
(2) Whether the Will of the (deceased) Tony Nokwai Okolonwamu ran contrary to the customary succession law of the Asaba people.
(3) Whether the gift made under the said Will to the 2nd Respondent, whose husband witnessed the Will was valid.
(4) Whether the Appellants succeeded in establishing that he is the first/eldest son of the (deceased) Tony Nokwai Okolonwamu through his mother lawfully married to the deceased and thereby making him solely entitled to the property known as No. 14 Uda Street (also known as Ndumi Obi Okolo’s House), Umuda Umuaji Quarters, Asaba.
The Court of Appeal resolved all the four Issues against the Appellants and held “this Appeal is totally without merit and is hereby dismissed.”
The Appellants filed a Notice of Appeal containing eight Grounds of Appeal in this Court. But the first set of Respondents raised a Notice of Preliminary Objection challenging the competence of this Appeal “for want of leave”, and they urged this Court to strike out this Appeal.
They submitted in their Brief of Argument that the Issue calling for determination in their Notice of Preliminary Objection is “whether Appellants are entitled to maintain the Appeal without leave of Court.”
They argued that Appellants initiated this Appeal without recourse to Section 233(3) of the 1999 Constitution (as amended), which says that for appeals of this nature, an
Appellant must first seek and obtain the leave of the Court before he can validly commence the appeal process.
They also cited N. E. M. G. Ltd. V. Uchay (1973) 4 SC 1, Faith Ent. V. BASF Ltd. (2010) 1 MJSC (Pt.1) (sic), Metal Const. W. A. Ltd. V. Migliore (1990) 1 NWLR (Pt. 126) 299, Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484, Thor Ltd. V. F.C.M.B. (2002) 4 NWLR (Pt. 757) 427, Madukolu V. Nkemdilim (1962) ANLR 587 and Macfoy v. UAC Ltd. (1962) AC 152 on the issue of seeking leave vis-a-vis grounds of appeal.
They submitted that their Grounds of Appeal borders principally on complaints against the exercise of discretion of the Court of Appeal and, indeed, against the concurrent findings of the two lower Courts; that the Appellants had filed an Application at the Court of Appeal for leave to appeal inter alia, which was later withdrawn, and dismissed; that the effect of withdrawing the said Application is that this Court’s jurisdiction to entertain this Appeal has been truncated and therefore, extinguished; and that due to the Appellants’ failure to comply with the provisions of Section 233(3) of the Constitution (as amended)-<br< p=””</br<
There is no basis upon which this Appeal can stand. The failure robs this Hon. Court of the requisite jurisdiction to hear and determine this Appeal.
The Appellants, however, argued in their Reply Brief that they did not pinpoint the particular ground of appeal that borders on the exercise of discretion by the lower Courts, rather the first set of Respondents chose to make a blanket condemnation of all the Grounds of Appeal; and they cited Dairo V. Union Bank (2007) 31 NSCOR 475, Nwadike V. Ibekwe & Ors. (1987) 12 SC (Pt. 1) 164, Ogbechie V. Onochie (supra), on what constitutes grounds of law, of fact or of mixed law and fact.
They submitted that their Grounds of Appeal are grounds of law, which essentially border “on the legal validity of the making and proof of a Will, its due execution, the legal status of beneficiaries of a Will, and the legal relationship between a Will and Customary Law”; and that even where there are grounds of fact, a ground of appeal on law, is capable of sustaining an appeal, citing Dairo V. Union Bank (supra).
Both Parties slanted the law to support their contrasting views.
To put things in their proper perspective, I will go down to brass tacks; what is a ground of appeal Basically, a ground of appeal consists of error of law or fact, which an Appellant sees as a defect in a Judgment, and which he relies upon in asking an appellate Court to set it aside – see Metal Const. W. A. Ltd. V. Migliore (supra), cited by Appellants.
The Appellant must also itemize the error or misdirection in the Particulars to the ground(s) of appeal. Such Particulars should not be independent complaints from the ground of appeal but ancillary to it – see Globe Fishing Ind. Ltd. V. Coker (1990) 7 NWLR (Pt. 162) 265 and Nyako V. Adamawa State House of Assembly & Ors (2016) LPELR- 41822 (SC), wherein this Court per M. D. Muhammad, JSC, observed –
The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children” or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the
issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the Parties.
In other words, in determining whether a ground of appeal alleges an error in law or fact, the ground must be construed together with the particulars of error alleged because its classification as a ground of law can only give competence to an appeal without leave, if the nature of the misdirection or error clearly stated in the particulars bears out the category assigned -Garuba V. Omokhodion (2011) 6-7 SC (Pt. V) 89.
In other words, as the Respondents rightly submitted, where the ground of appeal involves questions of fact or of mixed law and fact, leave to appeal must be obtained from Court of Appeal or this Court. Failure to obtain the requisite leave renders the appeal incompetent – see Garuba V. Omokhodion (supra), Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337 and Akpasubi V. Umweni (1982) 11SC 113, where Eso, JSC, observed:
The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on questions of fact lies to this Court without such leave. In other words, where, as it would appear to me in this case, question of fact has been brought before this Court without leave, the Court has no jurisdiction.
So, this Court has no jurisdiction to entertain an appeal on ground of fact or mixed law and fact unless the said leave is sought and obtained – see Ukpong V. Comm., for Finance and Econ. Dev. (2006) 19 NWLR (Pt. 1013) 187, wherein Onnoghen, JSC (as he then was) observed:
Where an appeal is to be with leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same. Are the Grounds of Appeal raised in the Appellants’ Notice of Appeal grounds of law, as they said, or grounds of fact or mixed law and fact, as alleged by the first set of Respondents This is not an easy question because there is a thin line that runs between the said categories that makes it difficult to decipher a question of law from a question of fact.
However, this Court has laid down guidelines in numerous cases, which set out the parameters, for finding answers to the said question- seeBoard of Custom & Excise V. Barau (1982) NSCC (Vol.13) 358, wherein this Court per Eso, JSC, aptly observed as follows on the issue:
The Court of Appeal has to decide first, as a matter of law, that a trial Court failed to make use of the advantage it has of seeing the witnesses before it before proceeding to substitute as a matter of fact, its own finding made on the printed evidence – – – It is only where there is a wrong application of such facts that the Court of Appeal interferes.
Where, however, the Court of Appeal finds as a matter of law that the facts have been correctly applied, it does not interfere. The Court does not proceed any further to deal with facts – – This fine distinction is very important for it goes into the jurisdiction, which a Court of Appeal, exercises under the Constitution. While appeal to the Court of Appeal on the issue of law is as of right, an appeal on the facts is with leave of the Court from where
the appeal lies or the Court to which the appeals lies. – – – Where a trial Court fails to apply the facts, which it has found, correctly to the circumstances of the case before it, and there is an appeal to a Court of Appeal, which alleges a misdirection in the exercise of the application by the trial Court, the ground of appeal alleging the misdirection is a ground of law and not of fact. When the Court of Appeal finds such application to be wrong and decides to make its own findings such findings made by the Court of Appeal are issues of fact and not law. Where the Court of Appeal interferes in such case and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground of appeal alleging such misdirection by the lower Court of Appeal is a ground of law and not of fact. It is only where there is an appeal against the finding made by the Court of Appeal in this exercise that issues of fact arise and leave will be required.
See also Dairo V. Union Bank (supra), (2007) 16 NWLR (Pt. 1059) 99, wherein this Court listed the following principles to serve as a guide:
Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the Respondent was based, such a ground of appeal is a ground of mixed law and fact. See Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555.
ii. A ground of appeal, which challenges the findings of fact made by the trial Court or involves issues of law and fact, is a ground of mixed law and fact – Maigoro V. Garba (supra).
iii. Where the evaluation of facts established by the trial Court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and fact. See Maigoro V. Garba (supra).
iv. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simipliciter – Ogbechie V. Onochie.
v. Where it is alleged that the trial Court or an appellate Court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simpliciter. See Nwadike & Ors. V. Ibekwe & Ors. (1987) 12 SC (Pt. 1) 164.
vi. It is a ground of law if the adjudicating Tribunal or Court took into account some wrong criteria in
reaching its conclusion or applied some wrong standard of proof or, if although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See O’ Kelly v. Trusthouse Forte P.I.C. (1983) 2 All ER 456 at 486; Nwadike & Ors. V. Ibekwe & Ors. (supra) pp. 491-492.
vii. Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn from therefrom are grounds of law. See Ogbechie V. Onochie (supra).
viii. It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See Nwadike & Ors. V. Ibekwe & Ors. (supra).
ix. Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law. See Ogbechie V. Onochie (supra) where ESO, JSC, citing with approval an article by C.T Emery in Vol. 100 LQR held:
If the Tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is question of law.
In Metal Const. W.A. Ltd. V. Migliore (supra), Obaseki, JSC, explained:
Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. – – – Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify or permit by the rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.
In this case, it is the first set of Respondents’ contention that the eight Grounds of Appeal raised by the Appellants in their Notice of Appeal:
Border principally on complaints against the exercise of the discretion of the Court of Appeal and indeed against the concurrent finds of the High Court and the Court of Appeal.
The Appellants, however, argued that none of the Grounds of Appeal borders on the exercise of discretion by the two lower Courts; and that they are nothing but grounds of law. Who is right and who is wrong
It is time to beam a searchlight on the eight Grounds of Appeal. In Ground 1 of the Grounds of Appeal, the Appellants complain that:
The learned Justices of the Court of Appeal erred in law in upholding “the medically layman view of the Respondent’s counsel that the heart and brain being two separate organs of the body, and in the absence of expert testimony to state that complications from heart surgery affected the brain, the testator was in a sound mental state at the time he made the civil (sic)” and without considering that the failure of the 1st to 10th Respondents to tender or call medical evidence of the mental state of the late Tony Nokwai Okolonwamu was fatal to the Respondent’s case and thereby arrived at a wrong division (sic).
As I stated earlier, in answering this question, the ground of appeal must be construed together with the particulars of error alleged since they are the specification of errors or misdirection, which show what the complaint against the decision is – Garuba V. Omokhodion (supra). In this case, the Particulars of Error to the said Ground 1 alleges that:
(i) The 1st to 10th Respondents on whom the onus lies to prove the Will of the Late Tony Nokwai Okolonwanu failed to call any expert evidence to testify on possible medical impact on the testamentary capacity of the deceased testator, who under-went a major surgery, shortly before executing the Will.
(ii) The learned Justices of the Court of Appeal in lieu relied on the legal submissions of the 1st to 10th Respondents’ counsel in place of this very vital evidence.
(iii) A blood sister of the deceased testator, PW3 testified that after the surgery, when the deceased testator visited Nigeria, he was behaving abnormally.
The complaint in Ground 1 is hinged on the trial Court’s finding that:
It is the case of the Plaintiffs that the testator became mentally ill after he underwent an operation and so was
not capable of making a Will. PW3 in her evidence in chief stated that her late brother was operated in the heart as a result of serious illness he suffered when he came back from overseas. She said he was treated overseas and when he came back to Nigeria, he showed them where he was treated. Continuing her evidence in chief she said: “After the treatment, I noticed my late brother behaving like a mad man”. Under cross-examination – – PW3 stated – -There is no evidence from PW3 that when she and other members of the family noticed that late Tony was behaving like a mad man, they took him to the hospital for treatment. There is no medical report suggesting that he was mad or that he suffered from any mental ailment. Going by the evidence of PW3, the late Tony took part in her daughter’s traditional wedding and according to her, no mad man was present at the ceremony. It is curious that PW3 and members of the Okolonwamu would allow the late Tony to go back to America after they noticed that he was behaving like a mad man. In the absence of any evidence establishing that the late Tony – – had any mental ailment. I hold that he was of sound mind when he made the Will, Exhibit A in this case.
In affirming the trial Court’s finding, Court of Appeal held as follows:
A careful perusal of the Will, a 7-page document, would reveal the innermost wishes of a cerebral and meticulous man. Nothing in the whole of the document showed him as lacking in any of the four guidelines of Corkburn J. The following tests were put forward by Corkburn, J., in the case of Banks v. Goodfellow (1861-73) All ER 47 – – The Respondents have also at the trial Court proved that the testator only underwent a heart surgery, which did not affect his reasoning faculty or mind in any way. I agree with the medically layman’s view of Respondents’ counsel that the heart and brain being two separate organs of the body, and in the absence of expert testimony to state that complications from heart surgery affected the brain, the testator was in a sound mental state at the time he made the Will.
As much as I agree with the Appellants that the complaint therein does not border on the exercise of discretion, I agree with the Respondents that it is, indeed, against the concurrent findings of two lower Courts, which makes Ground 1 a ground of fact or mixed law and fact, not law.
They are clearly questioning the findings of the lower Courts on the issue of whether the said deceased was of sound mind when he made the Will in question, which involved the evaluation of evidence. In Ground 2 of the Grounds of Appeal, they complained as follows –
The learned Justices of the Court of Appeal erred in law in upholding the validity of the Will of Late Tony Nokwai Okolonwamu without considering that the failure of the Respondents to call the two people who purportedly witnessed the Will to testify on its validity and its due execution is fatal to [their] case – – and thereby arrived at a wrong decision.
Particulars of Error
(i) The 1st to 10th Respondents as the propounders of the said Will of the deceased testator failed to call any of the supposed witnesses to Will to testify on its due execution.
(ii) The Appellants were, therefore denied the opportunity to cross-examine the supposed witnesses to the Will to ascertain the veracity of the witness as well as establishing other vital facts that would have emanated from cross-examination on the validity of the Will.<br< p=””
They complained as follows in Ground 3 of the said Grounds of Appeal:
The learned Justices of the Court of Appeal erred in law in holding that the DW2 and the Diokpa of the family gave a better expert opinion of Asaba inheritance law by stating that “the making of a Will is not forbidden in Asaba custom. The Will supersedes the custom in Asaba because the Will is legal,” and thereby arrived at a wrong decision.
Particulars of Error
(1) By Section 3 (1) of the Wills Law of Bendel State (applicable in Delta State) Cap. 72, a Will is made subject to any customary law.
(ii) It is not in consonance with the law particularly Section 3 (1) of the Wills Law of Bendel State for the DW2 or any of the Respondents’ witnesses to claim that a Will supersedes the custom in Asaba.
In Ground 4 of the Grounds of Appeal, Appellants’ complaint is that –
The learned Justices of Court of Appeal erred in law in holding that the Will of the deceased testator, late Tony Nokwai Okolonwamu did not run contrary to the custom of Asaba people on inheritance and thereby arrived at a wrong decision.
Particulars of Error
(1) DW4 called by the Respondents themselves testified to the effect that a daughter cannot be given or willed a property inside Asaba village.
(2) There is clear evidence that No. 14A Uda Street Asaba that the testator willed to his three (3) of his daughter (sic) is inside Asaba village.
(3) DW4 also testified that on the essence of the tying of white ribbon said that the white ribbon tied during burial related to properties, the most senior son, who ties the cloth round his head will hold the property, in trust for others. He said further that if there is a Will, he will take precedence so long as it does not run contrary to the traditional norm.
They complained as follows in Ground 5 of the said Grounds of Appeal:
The learned Justices of the Court of Appeal erred in law in holding that the gift under the said Will to the 2nd Respondent, whose husband Peter Okwuasaba witnessed the said Will did not fail irrespective of the fact of their marriage and thereby arrived at a wrong decision.
Particulars of Error
(i) It is in evidence that Peter Okwuasaba witnessed the said Will.
(ii) It is also in evidence that Peter Okwuasaba is the husband of one of the beneficiaries, the 2nd Respondent.
(iii) No witness in this case gave evidence on when the marriage between Peter Okwuasaba and the 2nd Respondent was celebrated; that the findings that the marriage was celebrated on 8/12/99 was not borne out of any admissible evidence.
Their complaint in Ground 6 of the Grounds of Appeal is as follows-
The learned Justices of the Court of Appeal erred in law and misdirected themselves in holding that there was no valid marriage between Late Nokwai Okolonwamu and the Appellants (sic) by preferring evidence of outsiders to that of the PW3 who is a full-blooded sister of the deceased.
PARTICULARS OF ERROR /MISDIRECTION
(i) Both PW1, PW2 and PW3 (a full-blooded sister of the deceased testator) gave evidence of the fact that the deceased testator was actually married to the Appellants’ mother.
(ii) The deceased testator’s sister, PW3 also testified she attended the marriage ceremony of Late Tony Nokwai Okolonwamu and the Appellants’ mother in 1964 at Ojoto.
In Ground 7 of their Grounds of Appeal, they complained as follows:
The learned Justices of the Court of Appeal erred in law in holding that the Appellants were unable to show or prove that the 1st Appellant is the first son of Tony Nokwai Okolonwamu and thereby arrived at a wrong decision.
Particulars of Error
(i) The Appellants showed by credible evidence that the 1st Appellant is the first son of Late Tony Nokwai Okolonwamu.
(ii) The fact was also attested to by the DW3.
(iii) It is also in evidence that the 1st Appellant renounced the Ogbu title of the deceased testator, which duty is normally the prerogative of the first son.
And finally, in Ground 8 of their Grounds of Appeal, they alleged that:
The learned Justices — erred in law and misdirected themselves in misinterpreting the purport of the testimony of PW2 that “upon the death of a man if he has more than one wife and he dies the 1st son inherits the father’s property and then shares to other brothers, when a woman dies, her 1st son takes over her landed property. When a man dies having wives and children the property of the man handled by the 1st son will be shared, I can’t tell what happens to a Will made by man as to how his property is to be shared. All I know is tradition” and thereby wrongly
holding that this testimony relates to a situation where a man dies instate (sic).
Particulars of Error /Misdirection
(i) The PW2 is merely postulating the position of the native law and custom of Asaba on the sharing of the estate of the deceased whether or not he died intestate.
(ii) The learned Justices of the Court of Appeal failed to consider the position of the native law and custom of the Asaba people as stated above.
Without setting forth the concurrent findings of the two lower Courts, on which the complaints in Grounds 2 – 8 of the Grounds of Appeal are based on, it is clear from the said Grounds of Appeal read together with their Particulars of Error and/or Misdirection that the Appellants’ complaints are directed against the evaluation of evidence tendered at the trial Court, which raise questions of fact; not questions of law.
What is more, the reference to Section 3(1) of the said Wills Law in Ground 3 does not make it a ground of law since their complaint is against the lower Courts’ findings touching on Asaba Customary law, and it is trite law that customary law is a question of fact, which must be proved or
ascertained by evidence – see Ojiogu v. Ojiogu & Anor (2010) 9 NWLR (Pt.1198) 1 SC. In other words, their argument that the said Grounds of Appeal border on the legal validity of the said Will, its due execution, etc., so, they are grounds of law, totally lacks merit.
Evidently, all the eight grounds of Appeal raise questions of fact, which has been brought to this Court without leave. Consequently, this Court lacks the jurisdiction to look into any of the questions raised. The Preliminary Objection is sustained, and the Appeal is struck out. The Parties are to bear their respective costs.